Friday, February 01, 2013

Examiner reversed in Ex parte Ott

In Response to Argument, the Examiner finds only that “Nitta does teach of encoding transmitting commanding signals from central operational processing circuit as narrow band phase shift key modulation circuit as Nitta discloses in paragraph 29 and 30 of machine translation.” Ans. 9-10. The Examiner does not address Appellant’s contention that Nitta’s communication link utilizes a spread spectrum technique.

AND

Appellant’s argument is convincing. While Nitta’s Abstract does describe an output control power supply PS having a standby welding period, in Nitta, power to the wire feeder is delivered from a control power supply SP. Thus, Nitta’s Abstract cannot fairly be read to teach delivery of a power source that “causes the power source to shift from the stand-by state to the power deliver state such that power for the welding process is delivered from the power source to the wire feeder” as required by claim 12. Similarly, on page 103, Nitta teaches a separate power source SP for delivery of power to the wire feeder.

For these reasons, we do not sustain the Examiner’s rejection of claim 12 and claims 13-17 which depend therefrom.

As a footnote to the case, note the point about provisional double-patenting rejections:

Claim 1 of copending Application No. 11/609,871 was amended on July 2, 2010, after the Examiner’s rejection that is the subject of this appeal (see Office Action dated April 6, 2009, at 2-3)2. For that reason, we decline to reach this rejection. See Ex parte Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010) (Precedential) (Panels have the flexibility to not reach provisional obviousness-type double-patenting rejections.).

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I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
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